What is a Marital Settlement Agreement?
A divorce settlement agreement can be referred to by many names, depending on where you live. It is a formal written document which lays out the terms both parties involved have agreed to. It can be called:
- Divorce Settlement Agreement
- Separation Agreement or Separation and Property Settlement Agreement
- Custody, Support ,and Property Agreement
- Mediated Separation Agreement
- Collaborative Settlement Agreement
- Property Settlement Agreement (PSA)
- Marital Settlement Agreement (MSA)
- Memorandum of Understanding (MOU)
The purpose of a marital settlement agreement is to document the details of any agreements reached between separating or divorcing spouses, and covers such areas as child custody, alimony (sometimes referred to as spousal support, maintenance, or separate maintenance), child support, the division of property, and any other issues that are relevant to your situation.
What the Process Involves
The steps you take to reach a marital settlement agreement can vary. You do not have to reach an agreement before you separate, but you can. You may also enter into a marital settlement agreement after you separate or after you file for divorce. In many cases, however, the parties involved may not be able to reach an agreement until divorce proceedings are about to begin. However, if you can reach an agreement before a judge intervenes, you can avoid unnecessary turmoil and minimize your attorney’s fees.
If you are able to reach a marital settlement agreement before you go to court, a divorce attorney or mediator can draw up the agreement and submit it to the judge, who will review the terms and ensure that they are fair and equitable. The judge may ask questions of one or both parties for clarification and to make sure everyone is in agreement. Because there is no discovery process in place in a divorce case, the judge will not have the opportunity to decide if your agreement is equitable (“fair”), but only if it complies with the laws of the state and is therefore legal and enforceable.
If you opt to begin the process before consulting an attorney, you can do so by acquiring the proper legal forms at your local county courthouse. Your marital settlement agreement should include:
- The date you got married
- The date you separated
- The names and ages of any minor children
- The reason (grounds) for your divorce
- Your current address and living arrangements. This can mean that one or both of you has moved out of the family home, or that you’re currently living “separate and apart” within the home
- The current situation and location of your children
- Other assets that you wish to name (e.g., family pets)
Once the agreement is drawn up, both parties need to confirm their agreement in writing, and have your signatures witnessed to make them legal and binding. Assets and debts will need to be defined and divided, a parenting plan to include custody as well as visitation should be included and agreed upon, and finally spousal support and child support will need to be determined and agreed upon. Once you’ve finished the paperwork be sure to check for errors before having it reviewed.
It is important to note that it is highly recommended that this agreement is drafted and/ or reviewed by a qualified mediator or divorce attorney, and not something you or your spouse generates on your own without consulting a legal professional. There are legal terms that must be used and terms that must be specified in order for your marital settlement agreement to be legal and binding; this is not a good scenario to have anything unclear. It is always best to have an attorney working on your behalf.
If your spouse’s attorney draws up the document, you need to have your own attorney review it before you sign, to make sure it was done correctly and according to your understanding of acceptable terms. The document will be entered into court records and become part of the legal proceedings. Once the marital settlement agreement is signed it becomes legally binding. As contested divorces can become lengthy and complicated procedures, reaching an agreement before your case goes before a judge can save everyone time, expense, and stress.
What Happens After a Marital Settlement Agreement?
The marital settlement agreement, while it is a binding contract, is not set in stone. It can be amended if both parties are in agreement with the proposed changes. Areas which are commonly changed include child custody, child support, and visitation agreements. These terms are often modified when a significant change in circumstances occurred after the date of the original order, such as a job transfer to another state which directly impacts visitation arrangements.
Another reason for modifying terms can be that a new arrangement is in the best interests of the child or children involved. Depending upon the wording of your original marital settlement agreement, alimony provisions may or may not be modifiable. Check with your attorney prior to your court date make sure the terms of your original agreement are clear regarding whether spousal support will be modifiable or not.
